Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 1 of 17

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1 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 1 of 17 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et al., Plaintiffs, v. CIVIL ACTION NO. 11-CA-360-OLG-JES-XR STATE OF TEXAS, et al., [Lead Case] Defendants. MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-361-OLG-JES-XR [Consolidated Case] STATE OF TEXAS, et al., Defendants. TEXAS LATINO REDISTRICTING TASK FORCE, et al., Plaintiffs, CIVIL ACTION NO. v. SA-11-CA-490-OLG-JES-XR [Consolidated Case] RICK PERRY, Defendant. MARGARITA V. QUESADA, et al., Plaintiffs, v. CIVIL ACTION NO. SA-11-CA-592-OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants.

2 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 2 of 17 EDDIE RODRIGUEZ, et al., Plaintiffs, v. CIVIL ACTION NO. SA-11-CA-635-OLG-JES-XR RICK PERRY, et al., [Consolidated Case] Defendants. QUESADA PLAINTIFFS REPLY TO DEFENDANTS OPPOSITION TO MOTION FOR INTERIM ATTORNEYS FEES, EXPENSES AND COSTS The Quesada Plaintiffs respectfully submit this reply to the Defendants Response in Opposition to Quesada Plaintiffs motion for an interim award of attorneys fees, expenses and costs with respect to Plaintiffs challenges to the Defendants congressional redistricting plan. 1. Defendants Are Wrong That Interim Relief Was Based Solely on Section 5 One of the Defendants main arguments in opposition to the pending motions for interim attorneys fees with respect to the congressional plan is that this Court only awarded relief based on the Section 5 claims that had been brought in this Court. Defendants Response ( Def. Resp. ) at 11. Because Section 5 has now been nullified by the Supreme Court, the Defendants argue, awarding fees pursuant to that unconstitutional statute would also be unconstitutional. Id. 1 But Defendants have made two glaring errors in advancing these arguments. First, in support of its contention that the only claims on which this Court granted (or could have granted) provisional relief were under Section 5 of the Voting Rights Act, the Defendants cite this Court s order (Dkt. # 275) of August 31, Def. Resp. at 11. Of course, that order is not the one that ordered the 2012 interim plan into effect. That order was vacated in January The State errs when it claims that the Supreme Court s decision in Shelby County v. Holder, 133 S. Ct. 2612, 2631 (2013), declar[ed] that the 2006 reauthorization of the preclearance requirement violated the Constitution. State s Response at 11 (emphasis added). The Court invalidated the coverage formula of Section 4 of the Voting Rights Act and made clear that its ruling did not decide the constitutionality of the preclearance requirements of Section 5. 2

3 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 3 of 17 by the Supreme Court in Perry v. Perez. 2 The order that ordered the interim plans into effect was entered on March 19, Second, the Defendants totally mischaracterize the March 19, 2012 order, claiming that Order addresses only Section 5 claims[.] Def. Resp. at 12 (emphasis added). The March 19 order, however, made clear that the interim remedial order was the result of preliminary determinations regarding the merits of the 2 and constitutional claims presented in this case, and application of the not insubstantial standard for the 5 claims, as required by the Supreme Court s decision in Perry v. Perez, 565 U.S., 132 S. Ct. 934 (2012) (per curiam). Dkt. #691. So the State s arguments that the Quesada and other plaintiffs are not entitled to any attorneys fees because the remedial order was based solely on Section 5 claims are simply erroneous Defendants Err in Their Assertion That the Quesada Plaintiffs Are Not Prevailing Parties. The parties appear to agree that to qualify as a prevailing party entitled to attorneys fees, plaintiffs must obtain some relief that alters the legal relationship of the parties and changes the defendants conduct in a manner that benefits the plaintiffs. Compare Quesada Plaintiffs Motion for Interim Attorneys Fees ( Quesada Mot. ) at 17 with Def. Resp. at The Defendants are also incorrect in stating that the Supreme Court s decision in January 2012 was a unanimous reversal by the United States Supreme Court[.] Def. Resp. at 2. The Supreme Court did not reverse this Court s judgment. Rather, the Supreme Court vacated the orders implementing interim maps [b]ecause it is unclear whether the District Court for the Western District of Texas followed the appropriate standards in drawing interim maps for the 2012 Texas elections[.] Perry v. Perez, 565 U.S., 132 S. Ct. 934 (2012) (per curiam) 3 Moreover, at the time this Court granted relief in the form of an interim plan, Sections 4 and 5 of the Voting Rights Act were the law of the land and neither provision had been declared unconstitutional. Thus, even if Defendants were correct that this Court fashioned all of the interim relief based on the not insubstantial claims under Section 5 of the Voting Rights Act, this Court was justified in fashioning relief under the law that existed at the time. 3

4 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 4 of 17 Defendants concede that the Court has awarded only interim relief. Def. Resp. at 1. They claim, however, that Plaintiffs are not entitled to any award of attorneys fees because they did not achieve any final ruling entitling them to attorneys fees. Id. at 3-4. Contrary to Defendants arguments, the Plaintiffs did obtain full and final relief with respect to the 2011 redistricting plans. Those plans were enjoined from implementation by this Court and were never used. The Plaintiffs also secured relief in the form of interim plans that governed the 2012 elections. Subsequent to the 2012 election cycle, the State repealed the 2011 plans and has enacted new plans to replace them. In these circumstances, full relief was obtained with respect to the 2011 plans. Though there are still remaining issues in this case, such as pending challenges to the State s newly enacted plans and whether relief under Section 3c of the Voting Rights Act should be afforded, the Plaintiffs have secured final relief insofar as their challenges to the legality of the 2011 plans are concerned. Even if -the relief Plaintiffs obtained regarding the 2011 plan was not deemed final, the United States Supreme Court has observed that attorneys fees may be awarded before the litigation is completed and on an interim basis. Texas State Teachers Ass n.v. Garland Indep. Sch. Dist., 489 U.S. 782, 791 (1989) ( Congress cannot have meant prevailing party status to depend entirely on the time of a request: A prevailing party must be one who has succeeded on any significant claim affording it some of the relief sought, either pendente lite or at the conclusion of the litigation. ). The Fifth Circuit has likewise held that an award of attorneys fees may be appropriate prior to the entry of a final judgment. See Hutchinson v. Patrick, 636 F.3d 1, 8 (5th Cir. 2011). Such an award is proper, pendente lite, where a party has established his entitlement to some relief on the merits of his claims. Thus, prevailing party status is not restricted to a party who has secured a favorable final judgment. Hutchinson, 363 F.3d at 8 4

5 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 5 of 17 (internal citations and quotations omitted) (emphasis added). The district court s discretion to order interim attorneys fees serves to further the goal of ensuring effective access to the judicial process for those aggrieved of their civil rights. Allen v. La. State Bd. of Dentistry, 948 F.2d 946, 947 (5th Cir. 1991). Moreover, cases cited by Defendants (see Def. Resp. at 3) that denied an award of attorneys fees to a plaintiff who obtained only preliminary relief, such as Sole v. Wyner, 551 U.S. 74, 86 (2007), are plainly distinguishable. In Sole, for example, the plaintiff was granted a preliminary injunction, but the same permanent injunctive relief was denied the plaintiff when the Court decided the merits of the case. Here, the interim relief has not been overturned or denied. Indeed, the State has now enacted it. Planned Parenthood of Houston & Se. Tex. v. Sanchez, 480 F.3d 734, (5th Cir. 2007) is likewise distinguishable as there, the Fifth Circuit affirmed a denial of attorneys fees to plaintiffs who secured a preliminary injunction in the district court when that injunction was later dissolved after an adverse ruling by the court of appeals. This case is far different. Here, Plaintiffs obtained: an injunction barring use of the 2011 plan; a court order directing use of a new redistricting plans in 2012; and benefits from the implementation of the 2012 interim plan that materially altered the legal relationship between Plaintiffs and Defendants. Moreover, the State has now repealed the 2011 plans and replaced them with new ones that are identical to the interim plans ordered into effect by this Court. These circumstances are a far cry from those cases, such as those cited above, where a plaintiff obtains a preliminary injunction but later loses the case on the merits. Although the State urges the Court not to grant prevailing party status to the Quesada Plaintiffs because they obtained only interim relief, they begrudgingly concede that the Quesada Plaintiffs achieved at least partial success. Def. Resp. at 16. That position is consistent with 5

6 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 6 of 17 the Quesada Plaintiffs fee motion, which asks for an award of attorneys fees based on their partial success in achieving some of the relief they sought in the North Texas area. The State also claims (Id. at 12) that the Quesada Plaintiffs are not entitled to fees because Plaintiffs filed an advisory with this Court after the interim plan was first proposed expressing concerns that the interim plan fragmented the minority community in the Dallas Fort Worth metroplex. Quesada Plaintiffs did express concern, along with LULAC and the NAACP, that the Court s interim plan did not provide complete relief in the North Texas area. The Quesada Plaintiffs (and the NAACP and LULAC) had sought the creation of two new minority districts in that region and had offered plans producing that result. See Quesada Plaintiffs Am. Compl. (Dkt. # 84-1) at The 2012 interim plan created only one such district, leaving hundreds of thousands of Latinos and African Americans in the Dallas Fort Worth metroplex in Anglo-controlled districts. Though the interim plan did not achieve all of the relief sought by Plaintiffs, it did achieve some of the relief by creating one new district in that area of the State. The creation of this district gave the Quesada Plaintiffs a substantial benefit and changed their legal relationship with the State. It provided them, for the first time this decade, with a new congressional district in which African Americans could elect their preferred candidate, and African American voters did precisely that in the 2012 elections electing one of the Quesada Plaintiffs (Marc Veasey) to office. Defendants opposition argues as if no relief was afforded the Quesada Plaintiffs in North Texas at all. In so doing, Defendants fail to address any of the Quesada Plaintiffs claims that the creation of a new effective African American district in the Dallas Fort Worth metroplex 6

7 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 7 of 17 (which the Quesada Plaintiffs sought in their Amended Complaint at 45, 46, 54, and 56) 4 provided them with a substantial benefit and materially changed the legal relationship between Plaintiffs and Defendants. Because the Defendants failed to address these points in their response, they have effectively conceded them. The Defendants also suggest that the Quesada Plaintiffs are not entitled to any fees because the interim relief they obtained was technical or de minimis, (see Def. Resp. at 4-5). But Defendants never dispute that the very relief that the Quesada Plaintiffs sought creation of a new effective African American district in the Dallas Fort Worth area was granted by this Court. In Plaintiffs memorandum in support of the motion for interim attorneys fees, Plaintiffs explained how that relief benefitted the Quesada Plaintiffs and materially changed the legal relationship between the Quesada Plaintiffs and the State Defendants. Quesada Mot. at The Defendants opposition fails to respond to those points The State Defendants Are Wrong that the Quesada Plaintiffs Fee Request is Disproportionate to the Success or Relief Obtained. 4 In their Amended Complaint, the Quesada Plaintiffs specifically alleged that they had proposed an alternative redistricting plan to the Texas Legislature (which had been rejected) that create[d] an additional African-American opportunity district in the Dallas-Tarrant Counties region. Quesada Plaintiffs Am. Comp. (Dkt. # 84-1) at The State is also wrong in its assertion that if the Quesada Plaintiffs only concern was the DFW area, then they would not actually be the Quesada Plaintiffs as Plaintiff Margarita Quesada is a resident of San Antonio. Def. Resp. at 15. As noted infra at p. 7, the Quesada Plaintiffs have never asserted that the Dallas Fort Worth metroplex was their only concern. But it was their principal focus in this case, as other plaintiffs focused on other parts of the State, and the Quesada Plaintiffs agreed to be the last plaintiff to present evidence and make legal arguments at opening and closing statements. Moreover, the State s assertion shows a lack of understanding of how a plaintiff group comprised of numerous plaintiffs is described for the convenience of the Court and parties. Ms. Quesada was simply the first named plaintiff in the complaint. For that reason alone, the other nine plaintiffs on the complaint have been referred to throughout this case as the Quesada Plaintiffs. In fact, six of the ten Quesada Plaintiffs reside in the Dallas Fort Worth metroplex. See Quesada Plaintiffs Am. Comp. (Dkt. # 84-1) at

8 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 8 of 17 Defendants assert that a fee award must be proportional to the plaintiff s success. Def. Resp. at 6, 14. The Quesada Plaintiffs fully complied with that principle by limiting their fee request to the time spent securing the relief they obtained in North Texas. The Defendants point out that the Quesada Plaintiffs challenged the congressional plan in other regions of the State. Def. Resp. at 15. Of course, the Quesada Plaintiffs noted this fact in their memorandum in support of motion for attorneys fees. See Quesada Mot. at 2 n.1. The Quesada Plaintiffs challenged the State s 2011 congressional plan in South Texas, in San Antonio, in District 23, and in Houston, as well as challenging it for its failure to create more minority districts in North Texas. The State s arguments might have some force if the Quesada Plaintiffs were seeking attorneys fees for any of the relief they obtained (along with other parties) in areas other than North Texas, or if they were seeking fees for claims on which they did not prevail. But the Quesada Plaintiffs are not seeking fees for any such work, and have limited their fee request to the relief afforded in the Dallas Fort Worth metroplex, where the Quesada Plaintiffs focused their case and where they obtained success. 6 The Quesada Plaintiffs have not sought attorneys fees for any of their work outside the Dallas Fort Worth area because other plaintiffs carried the lion s share of the work in those areas. The relief granted in those other areas of the State (i.e., outside the Dallas Fort Worth region) was consistent with the Quesada Plaintiffs claims, and even though the Quesada Plaintiffs had a legal basis for seeking attorneys fees for relief afforded in other areas of the State, the Quesada Plaintiffs have exercised reasonable billing judgment and limited their claim for attorneys fees 6 The Defendants and the Quesada Plaintiffs agree that the fee determinations should be made using the lodestar method, which is a calculation that multiplies the number of hours times a reasonable hourly rate. Def. Resp. at 5-6. Because the Quesada Plaintiffs have not sought an upward adjustment to the lodestar calculation, the Defendants arguments that the lodestar should not be adjusted upward (see Def. Resp. at 5-6) are irrelevant to the Quesada Plaintiffs interim fee motion. 8

9 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 9 of 17 and expenses to that area of the State where they did much of the work to secure interim relief. So the Defendants are simply wrong in asserting that the Quesada Plaintiffs brief focuses on the DFW area because even they recognize that their other allegations were unsuccessful. Def. Resp. at The Defendants Opposition to the Reasonableness of the Attorneys Fees Requested or the Hourly Rates Sought by the Quesada Plaintiffs Lacks Merit. Defendants acknowledge that the Quesada Plaintiffs have exercised billing judgment. Def. Resp. at 18. They also acknowledge that the Quesada Plaintiffs reduced their fees. Id. at 14. But they argue that further reduction is merited because the Quesada Plaintiffs attorneys billable rates, and the amount of fees incurred, are unreasonable in light of the degree of their success. Id. We address each of these points below. A. The Quesada Plaintiffs Were Justified in Retaining Out-of-State Counsel. Defendants argue that this Court should not allow an award based on the prevailing hourly rate in Washington DC because the Quesada Plaintiffs had no difficulty obtaining local counsel. Id. at 19. But as was argued in Plaintiffs memorandum in support of the motion for interim fees and expenses, the Quesada Plaintiffs acted reasonably in retaining out-of-state counsel who possess vast expertise in this difficult and complex area of the law. One of the Quesada Plaintiffs, Jane Hamilton, has executed a sworn Declaration that she was unable to find in-state counsel to represent her. See Exhibit M hereto. Ms. Hamilton s testimony is that she was responsible for retaining counsel for the group of persons who became the Quesada Plaintiffs in this case and that none of those persons could find competent local counsel to represent them. Consequently, Ms. Hamilton, who was familiar with Mr. Hebert s experience from prior redistricting and voting rights cases, contacted Mr. Hebert and asked him to represent the Quesada Plaintiffs and bring a challenge to the Texas congressional map. Id. 9

10 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 10 of 17 The local counsel listed as representing the Quesada Plaintiffs are not redistricting or voting rights attorneys, a specialty that even the federal judicial center recognizes as the most difficult and complex. See Exhibit J to Quesada Plaintiffs Motion for Interim Fees. The Texas attorneys listed as co-counsel with Mr. Hebert and the Jenner & Block attorneys served as local counsel, providing support and assistance as needed. None of their time has been billed in this case, further demonstrating sound and reasonable billing judgment by the Quesada Plaintiffs. It is not unusual that in redistricting cases, out-of-state attorneys often serve as cocounsel, especially those with particularized experience in the field. Even the State of Texas employed two out-of-state-firms in efforts to defend its redistricting plans: three attorneys from the law firm Bancroft PLLC in Washington, DC to handle its appeal to the Supreme Court; and attorneys from a Chicago-based law firm, Bartlit Beck Herman Palenchar & Scott LLP, who actually led the State s defense of its redistricting plans in the District of Columbia District Court. Defendants make much of the fact that there were numerous attorneys representing the various plaintiff groups in this case. The Defendants conveniently ignore that there have been a dozen or more attorneys from the Attorney General s office involved in this case at one time or another. 7 What is more important than the number of attorneys who have submitted requests for attorneys fees is whether those fees are reasonable. In the case of the Quesada Plaintiffs, three of the six attorneys are requesting no fees, two have limited their fee request to a mere 84.5 hours and then reduced the amount of fees by 50%, and one attorney (Mr. Hebert) reduced his overall 7 In this Court alone, the following 14 attorneys have entered appearances, been listed on pleadings, or appeared for the Defendants: Schenck, Mattax, Frederick, Jordan, McKenzie, Colmenero, Cohen, Sweeten, Jackson, Clay, Hodge, Napier, Mitchell, and Abbott. See docket sheet for these consolidated cases. 10

11 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 11 of 17 time (nearly 450 hours) by just over 50% to 222 hours. In these circumstances, the State s claim of excessive attorney time or excessive billing rings hollow. B. The Hourly Rate For Attorney Hebert is Not Unreasonable. In support of its claim that the hourly rate of $650 for Mr. Hebert is excessive, Defendants offer a Report of Scott Brister. Defendants contend that the appropriate billing rate should be the San Antonio market rate, which they claim, based almost entirely on the Brister report, is $200-$350 per hour. Def. Resp. at Brister s report notes he submitted an affidavit just last year in a San Antonio voting rights case (LULAC v. City of Boerne) in which he stated that the prevailing hourly rate for attorneys with greater than 18 years of experience was $700 per hour. Brister s attempts to explain how that earlier affidavit is consistent with his current affidavit are unconvincing. Brister admits stating that an hourly rate of $750 for one of the attorneys in that case was reasonable. But Brister claims that he should not be bound by such a statement because he was asked in that case only for an affidavit relating to fees generally charged by such firms[.] Brister Rep. at 7. Brister adds: I was not retained as an expert and reviewed none of the files, so my opinion was not intended to address voting-rights fees specifically. Id. Interestingly, neither Defendants nor Brister attached Brister s affidavit from the LULAC v. City of Boerne case. We attach the Brister affidavit here as Exhibit N. An examination of that affidavit shows that Brister did not limit or qualify his affidavit testimony in the LULAC v. City of Boerne case in the manner that he now claims. As the Court will note, Brister simply testified in LULAC v. City of Boerne that he was familiar with the reasonable and necessary fees and prevailing rates charged by attorneys in the State of Texas, including the Western District of 8 Brister acknowledges in his report that [r]edistricting litigation is important and often complex[.] Exhibit B to Def. Resp. at p. 6 (Dkt. # 836-2). 11

12 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 12 of 17 Texas. He then added that [b]ased on my experience, it is my opinion that the prevailing market rate for similar services by an attorney with eighteen years of experience and credentials similar to [attorney] Greg Coleman is $750 per hour[.] Ex. N at 2. The motion for attorneys fees in LULAC v. City of Boerne noted that attorney Coleman had 18 years of experience. See LULAC v. City of Boerne, No. 96-CV-808-XR (W.D. TX) (motion for attorneys fees, cost and expenses, filed June 6, 2012, Dkt. #80). Attorney Hebert is now in his fortieth year of practice, and as the sworn declarations in support of the Quesada Plaintiffs motion for interim fees show, he is a nationally recognized expert in the field of voting rights and redistricting. See Exhibits F, G, H and I to Quesada Mot.. In these circumstances, the hourly rates sought by Quesada Plaintiffs attorneys are not only reasonable, they are actually supported by the earlier Brister affidavit. 9 It is also worth noting that Mr. Brister s hourly rate for preparing a report in this case on the issue of attorneys fees is $575 per hour, as evidenced by Exhibit O (attached hereto) an from counsel for the Defendants (Mr. Sweeten) to plaintiffs counsel providing Mr. Brister s hourly rate and reporting that his contract shall not exceed $70,000. Finally, Defendants take issue with the fact that Mr. Hebert only examined two witnesses at trial (it was actually three) and did not reduce his trial time. Def. Resp. at Of course, a trial attorney in the courtroom can actively participate in a trial even if he or she spends limited time at the podium questioning witnesses. 10 Mr. Hebert attempted to reduce the workload of the 9 Moreover, the State of Texas employed legal counsel from the law firm of Baker Botts at a blended rate of $500 per hour for non-litigation redistricting advice in See Exhibits P-1 and P-2 hereto showing that this $500 per hour blended rate was for redistricting advice given to Speaker Straus and the Texas Legislative Council. The Baker Botts retainer also provided that one of their attorneys would be compensated separately at the rate of $10,000 per month. 10 Attorney Hebert played an active role at trial and throughout this case. He questioned three witnesses at trial and during the remedy hearings in this Court (Dr. Lichtman, Ryan Downton 12

13 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 13 of 17 Court and the parties by filing, whenever possible, joint briefs or advisories with other parties. Such an efficient use of time should not be penalized; it should be rewarded. With regard to their claims that Mr. Hebert joined other plaintiffs counsel in filing joint pleadings in this case, the Defendants cite only one time record where Mr. Hebert spent 0.6 hours editing a detailed filing submitted jointly by a number of the plaintiffs. Def. Resp. at 19. That hardly smacks of excessive billing or unreasonable billing judgment. Finally, we note that the Defendants have questioned the fact that time sheets for attorney Hebert contain time after July 1, Specifically, the Hebert time sheets contain 9.6 hours of time drafting the motion for attorneys fees and expenses. Plaintiffs included that time in order to bring the interim fee request up to the date the motion for interim fees was filed. Plaintiffs recognize the Court s July 1, 2013 order stated that counsel should submit their fee requests through July 1, Eliminating the 9.6 hours from the Hebert time sheets yields hours (222 hours minus 9.6 hours = hours). Multiplying the revised number of hours (212.4) times the hourly rate of $650 per hour comes to $138,060 in the amount of attorneys fees requested by attorney Hebert. C. The State Is Incorrect that the Requested Fees for Attorneys Smith and Lopez Should Be Disallowed in Their Entirety. The Defendants also take the position that the requested fees of Paul Smith and Caroline Lopez must be disallowed entirely as no billing records were submitted to support their fees. and Matt Angle), made an opening statement, and made a closing statement. The Quesada Plaintiffs offered 70 exhibits into evidence that were not duplicative of proof offered by others. See Trial. Tr. at (Vol. 6C) (September 12, 0211). Attorney Hebert agreed with other plaintiffs counsel to be the last counsel to offer evidence and to make arguments to the Court. This was to ensure that there was no duplication of arguments and to clarify any points needed after other plaintiffs counsel had proceeded. For this reason alone, the Quesada Plaintiffs did not waste time during the trial plowing ground already covered by other plaintiffs counsel. They should not be punished for agreeing to go last in their questioning or presentation. 13

14 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 14 of 17 Def. Resp. at 14 n.6. The Declaration of Paul M. Smith (Ex. E to Quesada Mot.) reported that Jenner & Block attorneys spent 84.5 hours through May 5, 2011, preparing a strategy memo for this case. So there is a sworn statement of the hours spent by Smith and Lopez for the legal services rendered to prepare that important strategy memorandum. Moreover, as the Smith Declaration makes clear, the timesheets detailing this work contain confidential and privileged information, and Mr. Smith offered to submit those time records to the Court for in camera inspection. Mr. Smith has submitted a supplemental declaration, attached hereto as Exhibit Q, to which Mr. Smith has appended the contemporaneous time sheets of Jenner & Block attorneys. These time sheets have been redacted to remove confidential and privileged information. Mr. Smith has again offered to make the unredacted time sheets available to the court for in camera inspection. Defendants have offered no other argument for disallowing the fees of Jenner & Block attorneys and have thereby waived any other objection to the allowance of these fees. D. The Expert Witness Fees Sought By the Quesada Plaintiffs Are Documented and Reasonable. Finally, Defendants assert that they cannot determine the amount of expert witness fees being sought by the Quesada Plaintiffs. The memorandum in support of the Quesada motion for interim attorneys fees makes clear that the total amount of expert fees for Dr. Lichtman is $22,500: The out-of pocket expert witness fees were relatively modest, totaling $22,500. See Quesada Mot. at and Exs. C and L thereto. As Exhibit C makes clear, Mr. Hebert paid Dr. Lichtman $12,500 while Exhibit L shows that a payment was made to Dr. Lichtman by Anglestrategies of $10,000 (totaling $22,500). In any event, we attach hereto as Exhibit R a declaration of Matt Angle verifying the payment of $10,000 by AngleStrategies to Dr. Lichtman, the Quesada Plaintiffs expert witness. That invoice is also attached to Exhibit R. 14

15 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 15 of 17 Dr. Lichtman produced expert reports and testified at a deposition and at the trial. Expert fees in the amount of $22,500 are actually relatively low for this type of work and in any event, are not unreasonable. Since those fees have been verified and substantiated, they should be awarded. E. Defendants Objections to AngleStrategies Time Sheets and Expenses Are Unfounded. The Defendants claim that the amount sought by AngleStrategies for paralegal support should be disallowed (due to block billing) and that AngleStrategies expenses for travel to provide legal support for attorney Hebert have not been documented. Importantly, Defendants do not claim that any of the legal support services listed by AngleStrategies was unreasonable in length. Though the time sheets by AngleStrategies were adequately documented in Exhibit L to the Quesada Plaintiffs Motion for Interim Attorneys Fees and the supporting memorandum, the Angle Declaration (Ex. R) also attaches revised time sheets in an effort to reduce the amount of so-called block billing to which Defendants have objected. See Exhibit R. We would note further that Defendants Response in opposition to the time sheets submitted by AngleStrategies fails to take into account that AngleStrategies has reduced by 50% the amount of time they expended in providing legal support to the Quesada Plaintiffs in this case. That reduction reflects sound and reasonable billing judgment. With respect to the Defendants objections that the expenses of AngleStrategies have not been documented, the attached Declaration of Matt Angle documents these expenses and makes clear that they were necessarily incurred in order to provide legal support to Mr. Hebert. 15

16 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 16 of 17 Respectfully submitted, GERALD HARRIS GOLDSTEIN DONALD H. FLANARY, III GOLDSTEIN, GOLDSTEIN & HILLEY Tower Life Building 310 S. St. Mary's, 29th Floor San Antonio, TX (210) /s/ J. Gerald Hebert J. GERALD HEBERT 191 Somervelle Street, #405 Alexandria, VA Tel. (703) Admitted pro hac vice PAUL M. SMITH JESSICA RING AMUNSON JENNER & BLOCK LLP 1099 New York Ave., NW Suite 900 Washington, DC Tel (202) Fax (202) JESSE GAINES TX Bar No PO Box Ft Worth, TX (817) Attorneys for Quesada Plaintiffs CERTIFICATE OF SERVICE I hereby certify that on the 29th day of August, 2013, I served a copy of the foregoing QUESADA PLAINTIFFS REPLY TO THE DEFENDANTS OPPOSITION TO QUESADA PLAINTIFFS MOTION FOR AN INTERIM AWARD OF ATTORNEYS FEES, EXPENSES AND COSTS on counsel who are registered to receive NEFs through the CM/ECF system. All attorneys who have not yet registered to receive NEFs have been served via first-class mail, postage prepaid. /s/ J. Gerald Hebert J. GERALD HEBERT 16

17 Case 5:11-cv OLG-JES-XR Document 880 Filed 08/29/13 Page 17 of 17 ADDITIONAL EXHIBITS TO QUESADA PLAINTIFFS MOTION AND BRIEF FOR INTERIM AWARD OF ATTORNEYS FEES AND EXPENSES REFERENCED IN THE FOREGOING REPLY EXHIBIT M Declaration of Jane Hamilton EXHIBIT N Scott Brister Affidavit from LULAC v. City of Boerne EXHIBIT O from Patrick Sweeten re: Brister Hourly Rate EXHIBITS P-1 and P-2 Baker Botts Retainer Agreement and Contract EXHIBIT Q Supplemental Declaration of Paul M. Smith with timesheets attached. EXHIBIT R Declaration of Matt Angle with Lichtman invoice and timesheets attached 17

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23 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 1 of 2 Perez et al. v. Perry EXHIBIT Q From: "Sweeten, Patrick" <patrick.sweeten@texasattorneygeneral.gov> Date: Wed, August 28, :06 pm To: "Nina Perales (nperales@maldef.org)" <nperales@maldef.org> (more) Cc: "Frederick, Matthew" <matthew.frederick@texasattorneygeneral.gov> (more) Priority: Normal Options: View Full Header View Printable Version Download this as a file Counsel, Yesterday afternoon Ms. Perales sent an seeking information related to Judge Brister s affidavit and expert report. That requested the following information, in addition to the extensive information and analysis already provided by Justice Brister on August 19th: (iv) [...] a list of all publications authored in the previous 10 years; (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and (vi) a statement of the compensation to be paid for the study and testimony in the case. It is the State s position that it is not required to disclose the requested information under Rule 26(a)(2)(B). See generally Wright v. Blythe-Nelson, 2001 WL , *6 (N.D. Tex. 2001) ( This court has typically treated the designation of attorney s fee experts differently from other experts. ); Primrose Operating Co. v. Nat. Am. Ins. Co., 382 F.3d 546, (5th Cir. 2004) (district court did not abuse its discretion by allowing an attorney s fees expert to testify despite the fact that no written report was provided.); McCulloch v. Hartford Life and Accident Ins. Co., 223 F.R.D. 26, 29 (D. Conn. 2004) (attorneys testifying solely on the topic of attorney s fees are not required to provide expert reports.). Rule 26(a)(2)(C) identifies disclosures that must be made if an expert is not required to provide a written report, which does not include the information sought in this request. Nevertheless, in an effort to move this litigation forward and in view of tomorrow s reply deadline, we are agreeing to provide respond to this request in this . Certainly if additional discovery is contemplated, the State has an interest of its own in conducting discovery related to the bills submitted and the multiple affidavits filed in this case utilized as support for the

24 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 2 of 2 over six million dollars in attorney s fees requested by the various Plaintiffs to this action. However, given the limited nature of this request and without waiving the State s objection to providing the requested information, the State s responds as follows: (iv) [...] a list of all publications authored in the previous 10 years; Articles: Brister & Boyd, TEXAS PRETRIAL PRACTICE (James Publishing 2000) The Decline in Jury Trials: What Would Wal-Mart Do?, 47 S. TEX. L REV. 191 (2005) Lonesome Docket: Using Texas Rules to Shorten Trials, 46 BAYLOR L. REV. 525 (1994) Proving Attorneys Fees in Texas, 24 ST.MARY'S L.J. 313 (1993) Justice Served by Merging Appeals Courts? HOUSTON CHRONICLE (March 30, 2003) Speed Up Pace of Texas Justice, HOUSTON CHRONICLE (July 23, 1995) Is it Time to Reform Our Courts of Appeals? HOUSTON LAWYER (Mar-Apr. 2003) (v) a list of all other cases in which, during the previous 4 years, the witness testified as an expert at trial or by deposition; and LULAC v. City of Boerne, et al., No. SA 96 CV 808 XR, in the U.S. District Court for the Western District of Texas Shannon Perez, et al. v. State of Texas, et al., No. SA 11 CA 360, in the U.S. District Court for the Western District of Texas Rx.com and Joe Rosson v. Haynes & Boone, LLP, et al., No , in the 80 th District Court of Harris County, Texas Gulf Coast Asphalt Co., L.L.C. and Trifinery, Inc. v. Russell Lloyd, John O Quinn & Associates, L.L.P., No , in the 80th District Court of Harris County, Texas (vi) a statement of the compensation to be paid for the study and testimony in the case. Former Supreme Court Justice Brister s contracted hourly fee is $575 per hour. The maximum contractual total for any hours billed by Justice Brister, or junior members of his firm at lower rates, is $70,000. Please feel free to contact me should you wish to discuss. Best Regards, Patrick K. Sweeten Office of the Texas Attorney General (512)

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40 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 1 of 6 IN THE UNITED STATES DISTRICT COURT FOR THE WESTERN DISTRICT OF TEXAS SAN ANTONIO DIVISION SHANNON PEREZ, et ai., Plaintiffs, v. STATE OF TEXAS, et ai., Defendants. CIVIL ACTION NO. ll-ca-360-0lg-jes-xr (Lead Case) MEXICAN AMERICAN LEGISLATIVE CAUCUS, TEXAS HOUSE OF REPRESENTATIVES, Plaintiffs, v. STATE OF TEXAS, et ai., Defendants. CIVIL ACTION NO. SA-II-CA-361-0LG-JES-XR ( Consolidated Case) TEXAS LATINO REDISTRICTING TASK FORCE, et ai., Plaintiffs, v. RICK PERRY, Defendant. CIVIL ACTION NO. SA-II-CA-490-0LG-JES-XR (Consolidated Case) MARGARITA V. QUESADA, et ai., Plaintiffs, v. RICK PERRY, et ai., Defendants. CIVIL ACTION NO. SA-II-CA-592-0LG-JES-XR (Consolidated Case)

41 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 2 of 6 EDDIE RODRIGUEZ, et ai., Plaintiffs, v. RICK PERRY, et ai., Defendants. CIVIL ACTION NO. SA-11-CA-635-0LG-JES-XR (Consolidated CaseJ DECLARATION OF PAUL M. SMITH IN SUPPORT OF PLAINTIFFS' MOTION FOR AN AWARD OF ATTORNEYS' FEES AND EXPENSES I, Paul M. Smith, hereby declare as follows: 1. I am a partner at Jenner & Block LLP ("Jenner") and counsel for the Quesada Plaintiffs in the above-captioned case. The testimony set forth in this Declaration is based on first-hand knowledge, about which I could and would testify competently in open Court if called upon to do so, and on records contemporaneously generated and kept by my Firm in the ordinary course of its law practice. This Declaration is submitted in support of Plaintiffs' Motion for an Award of Attorneys' Fees and Expenses. 2. I submitted a Declaration accompanying Plaintiffs' opening brief in support of Jenner's request for fifty percent of the fees incurred in developing a litigation strategy memorandum for this case. DecI. of Paul M. Smith (8/7/2013), at ~ 12. In that Declaration, I stated that "(tjhe records pertaining to the hours and expenses invested in this case by Jenner reflect confidential information and privileged work product. Therefore, rather than attach to this petition detailed daily time and expense records, I summarize those records here. I am prepared to submit the full records to the Court for inspection in camera at its request." d. at ~ Attached as Exhibit A hereto is a copy of the relevant pages of Jenner's time report for this matter, with confidential and privileged work product material redacted. These time records 2

42 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 3 of 6 are contemporaneously generated and kept by my Firm in the ordinary course of its law practice. As stated previously, I am prepared to submit the full records to the Court for inspection in camera at its request. I declare under penalty of perjury that the foregoing is true and correct to the best of my knowledge and that this Declaration was prepared in the District of Columbia on August 28, ifít ~é Mul M. Smith 3

43 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 4 of 6 EXHIBIT A

44 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 5 of 6 Time Report - Date SMlTask Attornéy Name Rate Orig.Hrs Qrig.Amt Rev Hrs /10/ /15/ CAROLINE D. LOPEZ reviewed and analyzed draft memorandum. 04/18/ CAROLINE D. LOPEZ , , drafted strategy memorandum re the same. 04/19/ CAROLINE D. LOPEZ drafted strategy memorandum re the same. 04/21/ CAROLINE D. LOPEZ /22/ CAROLINE D. LOPEZ /23/ CAROLINE D. LOPEZ /24/ CAROLINE D. LOPEZ , , drafted strategy memorandum re the same /25/ CAROLINE D. LOPEZ /26/ CAROLINE D. LOPEZ , , drafted strategy memorandum re the same; drafted strategy memorandum re 04/28/ CAROLINE D. LOPEZ , CAROLINE D. LOPEZ , Page 1

45 Case 5:11-cv OLG-JES-XR Document Filed 08/29/13 Page 6 of 6 Time Report - 07/10/2013 Date SMlTask Attorney Name Rate Orig Hrs Orig Amt Rev Hrs Rev Amt Service Activity 04/30/ CAROLINE D. LOPEZ , Drafted strategy memorandum re dited strategy memorandum. 05/01/ PAUL M. SMITH Reviewed draft strategy memo. 05/01/ CAROLINE D. LOPEZ Edited strategy memorandum. 05/02/ PAUL M. SMITH Worked on strategy memo. - 05/02/ CAROLINE D. LOPEZ , , /03/ CAROLINE D. LOPEZ , , /05/ CAROLINE D. LOPEZ Page 2

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